On 13 January 2013, a substantial reform of Austria's competition laws was published in the Austrian Federal Gazette which largely reflects the amendments proposed in the draft bill of the Austrian Federal Ministries of Economy and Justice (see VBB on Competition Law, Volume 2012, No. 2, available at www.vbb.com) The amending law brings changes to the Austrian Cartel Act (the "Kartellgesetz") and the Austrian Competition Act (the "Wettbewerbsgesetz"). It will enter into force on 1 March 2013.
The amendment of the Cartel Act introduces various substantive changes. Amongst others, the Austrian de minimis regime – which exempts anticompetitive horizontal agreements between undertakings that do not exceed a certain aggregated market share threshold – is aligned with EU rules, in particular by ensuring that hardcore restrictions (such as price fixing and market allocation) will be excluded from the de minimis exception (amended Section 2(2)(1) Cartel Act). Furthermore, having taken inspiration from Section 19(2) of the German Act Against Restraints of Competition ("GWB") which lays down the criteria for considering an undertaking to be dominant, a concept of joined dominance is now also introduced in Austria (new Section 4(2a) Cartel Act). As regards merger control, the amendment introduces the possibility of extending the Phase I review by an additional two weeks at the request of the notifying parties (new Section 11(1a) Cartel Act). The possibility of extending the Phase II review from five to six months is also introduced (amended Section 14(1) Cartel Act) in order to allow a comprehensive examination of possible commitments offered by the notifying parties. In addition, concerning the setting of fines, the amendment introduces additional aggravating and mitigating circumstances along the lines of the Commission's 2006 fining guidelines. Further, as of 1 March 2013, the Cartel Court will be obliged to publish final decisions finding an infringement or requiring that an infringement be brought to an end as well as final decisions imposing a fine (amended Section 37(1) Cartel Act). Finally, a new provision on damages for cartel law infringements is introduced (new Section 37a Cartel Act) and the fees for competition proceedings are adjusted upwards.
As regards the Competition Act, the reform aims at strengthening the powers of the Austrian Federal Competition Authority ("BWB"), in particular with respect to obtaining information from companies during investigations (amended Section 11a Competition Act). The amendment empowers the BWB to order, by administrative decision, the provision of information and documents (amended Section 11a(3) Competition Act). Any refusals or false statements will be considered to be an administrative offence, which can as of 1 March 2013 be sanctioned by the BWB itself (new Section 11a(5) Competition Act). So far, the BWB could not act autonomously in this regard and was required to have recourse to the Cartel Court. Moreover, the BWB's powers to ask questions during dawn raids have been strengthened (amended Section 12(4) in conjunction with amended Section 11a(1) Competition Act). Like the European Commission, the BWB will be able to request from all representatives and employees of the undertaking concerned explanations regarding facts or documents that are related to the subject-matter and purpose of the inspection. Also, the BWB will be entitled to seal rooms (amended Section 12(4) Competition Act). Finally, there will be a possibility for leniency applicants to benefit from immunity from fines even in cases where they provide evidence after the BWB began to suspect an infringement (amended Section 11(3)(1) Competition Act). Before the amendment, a leniency applicant in such a situation could only hope for a reduction of the fine.
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